EXHIBIT 10.2
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ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is entered into and effective
as of the ___ day of ______________, 1996, by and between Buckhead Community
Bancorp, Inc., a Georgia corporation (the "Company"), and SunTrust Bank, Atlanta
(the "Escrow Agent").
W I T N E S S E T H:
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WHEREAS, the Company proposes to offer and sell (the "Offering") up to
2,400,000 shares of common stock, $.01 par value per share (the "Shares"), to
investors at $5.00 per Share pursuant to a registered public offering; and
WHEREAS, the Company desires to establish an escrow for funds
forwarded by subscribers for Shares, and the Escrow Agent is willing to serve as
Escrow Agent upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Deposit with Escrow Agent.
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(a) The Escrow Agent agrees that it will from time to time accept, in
its capacity as escrow agent, subscription funds for the Shares (the "Escrowed
Funds") received by it from subscribers or from the Company when it has received
checks from subscribers. All checks shall be made payable to the Escrow Agent.
If any check does not clear normal banking channels in due course, the Escrow
Agent will promptly notify the Company. Any check which does not clear normal
banking channels and is returned by the drawer's bank to Escrow Agent will be
promptly turned over to the Company along with all other subscription documents
relating to such check. Any check received that is made payable to a party other
than the Escrow Agent shall be returned to the Company for return to the proper
party. The Company in its sole and absolute discretion may reject any
subscription for Shares for any reason and upon such rejection it shall notify
and instruct the Escrow Agent in writing to return the Escrowed Funds by check
made payable to the subscriber. If the Company rejects or cancels any
subscription for any reason the Company will retain any interest earned on the
Escrowed Funds to help defray organizational costs.
(b) Subscription agreements for the Shares shall be reviewed for
accuracy by the Company and, immediately thereafter, the Company shall deliver
to the Escrow Agent the following information: (i) the name and address of the
subscriber; (ii) the number of Shares subscribed for by such subscriber;
(iii) the subscription price paid by such subscriber; (iv) the subscriber's tax
identification number certified by such subscriber; and (v) a copy of the
subscription agreement.
(c) Subscribers may pay a deposit on their subscription price after
receipt of the Preliminary Prospectus used by the Company in the offering, but
prior to the delivery of a final Prospectus and confirmation of subscription to
the subscribers. Such deposit will be at least 10% of the total subscription
price for the number of shares subscribed for, and will be refundable if the
subscription is not confirmed by the subscriber when the final Prospectus
becomes available.
2. Investment of Escrowed Funds. Upon collection of each check by
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the Escrow Agent, the Escrow Agent shall invest the funds in deposit accounts or
short-term certificates of deposit which are fully insured by the Federal
Deposit Insurance Corporation or another agency of the United States government,
short-term securities issued or fully guaranteed by the United States
government, federal funds, or such other investments as the Escrow Agent and the
Company shall agree. The Company shall provide the Escrow Agent with
instructions from time to time concerning in which of the specific investment
instruments described above the Escrowed Funds shall be invested, and the Escrow
Agent shall adhere to such instructions. Unless and until otherwise instructed
by the Company, the Escrow Agent shall by means of a "sweep" or other automatic
investment program invest the Escrowed Funds in blocks of not less than $100,000
in securities issued or fully guaranteed by the United States government and, to
the extent not so invested, in blocks of $10,000 in federal funds. Interest and
other earnings shall start accruing on such funds as soon as such funds would be
deemed to be available for access under applicable banking laws and pursuant to
the Escrow Agent's own banking policies.
3. Distribution of Escrowed Funds. The Escrow Agent shall
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distribute the Escrowed Funds in the amounts, at the times, and upon the
conditions hereinafter set forth in this Agreement.
(a) If at any time on or prior to September 30, 1997, or such
subsequent extension date not later than March 31, 1998 (the "Closing Date"),
(i) the Escrow Agent has certified to the Company in writing that the Escrow
Agent has received at least $7,700,000 in Escrowed Funds which are collected
funds, and (ii) the Escrow Agent has received a certificate from the President
or the Chairman of the Board of the Company that all other conditions to the
release of funds as described in the Company's Registration Statement filed with
the Securities and Exchange Commission pertaining to the public offering have
been met, then the Escrow Agent shall deliver the Escrowed Funds to the Company
to the extent such Escrowed Funds are collected funds. If any portion of the
Escrowed Funds are not collected funds, then the Escrow Agent shall notify the
Company of such facts and shall distribute such funds to the Company only after
such funds become collected funds. For purposes of this Agreement, "collected
funds" shall mean all funds received by the Escrow Agent which have cleared
normal banking channels. In all events, the Escrow Agent shall deliver not less
than $7,700,000 in collected funds to the Company, except as provided in
Paragraph 3(b) hereof.
(b) If the Escrowed Funds do not, on or prior to the Closing Date,
become deliverable to the Company based on failure to meet the conditions
described in Paragraph 3(a), or if the Company terminates the offering at any
time prior to the Closing Date and delivers written notice to the Escrow Agent
of such termination (the "Termination Notice"), the Escrow Agent shall return
the Escrowed Funds which are collected funds as directed in writing by the
Company to the respective subscribers in amounts equal to the subscription
amount theretofore paid by each of
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them. All uncleared checks representing Escrowed Funds which are not collected
funds as of the Initial Closing Date shall be collected by the Escrow Agent, and
together with all related subscription documents thereof shall be delivered to
the Company by the Escrow Agent, unless the Escrow Agent is otherwise
specifically directed in writing by the Company.
4. Distribution of Interest. Any interest earned on the Escrowed
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Funds shall be distributed to the subscribers simultaneous with the release of
the Escrowed Funds (whether to the subscribers or the Company) based on the
proportion which the amount of collected funds held in escrow for the benefit of
each subscriber and the number of days such collected funds have been held bears
to the total of the daily collected balances of Escrowed Funds during the term
of this Agreement.
5. Fees of Escrow Agent. The Company shall pay the Escrow Agent an
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annual fee of $1,500.00 for its services hereunder. In addition, the Company
will pay a service charge of $5.00 per subscriber. All of these fees are
payable upon the release of the Escrowed Funds, and the Escrow Agent is hereby
authorized to deduct such fees from the Escrowed Funds prior to any release
thereof pursuant to Section 3 hereof.
6. Liability of Escrow Agent.
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(a) In performing any of its duties under this Agreement, or upon the
claimed failure to perform its duties hereunder, the Escrow Agent shall not be
liable to anyone for any damages, losses or expenses which it may incur as a
result of the Escrow Agent so acting, or failing to act; provided, however, the
Escrow Agent shall be liable for damages arising out of its willful default or
misconduct or its gross negligence under this Agreement. Accordingly, the
Escrow Agent shall not incur any such liability with respect to (i) any action
taken or omitted to be taken in good faith upon advice of its counsel or counsel
for the Company which is given with respect to any questions relating to the
duties and responsibilities of the Escrow Agent hereunder; or (ii) any action
taken or omitted to be taken in reliance upon any document, including any
written notice or instructions provided for this Escrow Agreement, not only as
to its due execution and to the validity and effectiveness of its provisions but
also as to the truth and accuracy of any information contained therein, if the
Escrow Agent shall in good faith believe such document to be genuine, to have
been signed or presented by a proper person or persons, and to conform with the
provisions of this Agreement.
(b) The Company agrees to indemnify and hold harmless the Escrow
Agent against any and all losses, claims, damages, liabilities and expenses,
including, without limitation, reasonable costs of investigation and counsel
fees and disbursements which may be imposed by the Escrow Agent or incurred by
it in connection with its acceptance of this appointment as Escrow Agent
hereunder or the performance of its duties hereunder, including, without
limitation, any litigation arising from this Escrow Agreement or involving the
subject matter thereof; except, that if the Escrow Agent shall be found guilty
of willful misconduct or gross negligence under this Agreement, then, in that
event, the Escrow Agent shall bear all such losses, claims, damages and
expenses.
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(c) If a dispute ensues between any of the parties hereto which, in
the opinion of the Escrow Agent, is sufficient to justify its doing so, the
Escrow Agent shall retain legal counsel of its choice as it reasonably may deem
necessary to advise it concerning its obligations hereunder and to represent it
in any litigation to which it may be a part by reason of this Agreement. The
Escrow Agent shall be entitled to tender into the registry or custody of any
court of competent jurisdiction all money or property in its hands under the
terms of this Agreement, and to file such legal proceedings as it deems
appropriate, and shall thereupon be discharged from all further duties under
this Agreement. Any such legal action may be brought in any such court as the
Escrow Agent shall determine to have jurisdiction thereof. In connection with
such dispute, the Company shall indemnify the Escrow Agent against its court
costs and reasonable attorney's fees incurred.
(d) The Escrow Agent may resign at any time upon giving thirty (30)
days written notice to the Company. If a successor escrow agent is not appointed
by Company within thirty (30) days after notice of resignation, the Escrow Agent
may petition any court of competent jurisdiction to name a successor escrow
agent and the Escrow Agent herein shall be fully relieved of all liability under
this Agreement to any and all parties upon the transfer of the Escrowed Funds
and all related documentation thereto, including appropriate information to
assist the successor escrow agent with the reporting of earnings of the Escrowed
Funds to the appropriate state and federal agencies in accordance with the
applicable state and federal income tax laws, to the successor escrow agent
designated by the Company appointed by the court.
7. Appointment of Successor. The Company may, upon the delivery of
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thirty (30) days written notice appointing a successor escrow agent to the
Escrow Agent, terminate the services of the Escrow Agent hereunder. In the
event of such termination, the Escrow Agent shall immediately deliver to the
successor escrow agent selected by the Company, all documentation and Escrowed
Funds including interest earnings thereon in its possession, less any fees and
expenses due to the Escrow Agent or required to be paid by the Escrow Agent to a
third party pursuant to this Agreement.
8. Notice. All notices, requests, demands and other communications
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or deliveries required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given three days after having been
deposited for mailing if sent by registered mail, or certified mail return
receipt requested, or delivery by courier, to the respective addresses set forth
below:
If to the subscribers for Shares: To their respective addresses as specified in their
Subscription Agreements.
The Company: Buckhead Community Bancorp, Inc.
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxx, President
With a copy to: Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
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Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
The Escrow Agent: SunTrust Bank, Atlanta
Mail Code 000
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Ms. Xxxxx Xxxxxxxx
Corporate Trust Services Division
9. Representations of the Company. The Company hereby acknowledges
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that the status of the Escrow Agent with respect to the offering of the Shares
is that of agent only for the limited purposes herein set forth, and hereby
agrees it will not represent or imply that the Escrow Agent, by serving as the
Escrow Agent hereunder or otherwise, has investigated the desirability or
advisability in an investment in the Shares, or has approved, endorsed or passed
upon the merits of the Shares, nor shall the Company use the name of the Escrow
Agent in any manner whatsoever in connection with the offer or sale of the
Shares, other than by acknowledgment that it has agreed to serve as Escrow Agent
for the limited purposes herein set forth.
10. General.
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(a) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Georgia.
(b) The section headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
(c) This Agreement sets forth the entire agreement and understanding
of the parties with regard to this escrow transaction and supersedes all prior
agreements, arrangements and understandings relating to the subject matter
hereof.
(d) This Agreement may be amended, modified, superseded or canceled,
and any of the terms or conditions hereof may be waived, only by a written
instrument executed by each party hereto or, in the case of a waiver, by the
party waiving compliance. The failure of any part at any time or times to
require performance of any provision hereof shall in no manner affect the right
at a later time to enforce the same. No waiver in any one or more instances by
any part of any condition, or of the breach of any term contained in this
Agreement, whether by conduct or otherwise, shall be deemed to be, or construed
as, a further or continuing waiver of any such condition or breach, or a waiver
of any other condition or of the breach of any other terms of this Agreement.
(e) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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(f) This Agreement shall inure to the benefit of the parties hereto
and their respective administrators, successors and assigns. The Escrow Agent
shall be bound only by the terms of this Escrow Agreement and shall not be bound
by or incur any liability with respect to any other agreement or understanding
between the parties except as herein expressly provided. The Escrow Agent shall
not have any duties hereunder except those specifically set forth herein.
(g) No interest in any part to this Agreement shall be assignable in
the absence of a written agreement by and between all the parties to this
Agreement, executed with the same formalities as this original Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
the date first written above.
COMPANY: ESCROW AGENT:
BUCKHEAD COMMUNITY BANCORP, INC. SUNTRUST BANK, ATLANTA
By: By:
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Xxxxxx X. Xxxxxxxx [Name:]
President [Title:]
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